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Against a "Post-Racial" Voting Rights Act

Flickr/Elise Brown

In June, five Supreme Court Justices rolled back the Voting Rights Act, widely considered the most effective tool in preventing discrimination in our nation's history. Section 5 of the act required that certain states and localities "preclear" proposed election changes with federal officials to ensure the changes were not discriminatory. The Court ruled that the formula used to determine which jurisdictions needed to get preclearance was outdated and unconstitutional. For those of us who care about voting rights, the question now is how do we respond?

Some have argued that Congress should update the Voting Rights Act by passing ambitious election reforms. Such proposals include mandating shorter voting lines, making registration more convenient, and passing less restrictive identification requirements. For example, Sam Issacharoff and Richard Pildes—both New York University law professors who advised the Obama campaign—argue that we should look beyond the race-discrimination approach and adopt general election reforms that are race-neutral.

The effort to update the Voting Rights Act, however, should focus on preventing voting discrimination—not general election reforms. Promoting broader access is a critical democratic goal, but it is distinct from the goal of preventing voting discrimination. By analogy, a tax deduction for mortgage interest promotes access to home ownership, but separate laws are still needed to prevent banks from engaging in predatory lending—different problems require different solutions. Voting discrimination is real, and broad election reform is not sufficient to address it.

The argument for general election reform is that today’s primary problems are long lines and other barriers that affect all Americans rather than discrimination against minorities. Granted, we have made significant progress when it comes to minority rights. Bull Connor no longer beats down demonstrators. Black voter turnout sometimes exceeds white turnout, and our nation has elected an African-American president. But voting discrimination persists. In many parts of the country, political operatives continue to maintain power by manipulating election rules to diminish minority votes. Redistricting, changing election dates, eliminating bilingual voting materials, and erecting barriers that make voting harder are just a few examples.

The fastest growing segments of our society—Latinos and Asian-Americans—pose particularly significant threats to status quo politicians and have thus been primary targets of such efforts. For example, in 2011, the Latino community surpassed 56 percent of the population of Nueces County, Texas. County officials responded by gerrymandering local election districts to ensure that Latino voters would not control a majority of the county commission seats.

High minority turnout does not prove an absence of discrimination—rather, it often triggers discrimination. In 2010, for example, African Americans in Augusta-Richmond, Georgia, made up a much larger percentage of the electorate in elections held in November (52 percent) than in elections held in July (43 percent). So officials moved local elections from November back to July. Another example: In November 2009, following rapid Latino growth, officials in Runnels County, Texas, failed to put a single bilingual poll worker at any county polling place despite a court order mandating a bilingual poll worker at every polling place. And in 2010, FBI wires recorded Alabama state senators discussing the need to stop a gambling-related referendum from being placed on the ballot because it could increase turnout by African Americans (whom the senators called “Aborigines”).

In fact, discriminatory practices can diminish the impact of minority votes without lowering turnout. For example, while the discriminatory gerrymander in Nueces County split up the votes of Latinos, it did not reduce the number of Latinos who voted. Similarly, city officials in Calera, Alabama, redrew the only majority African-American city council district in 2006 so that it dropped from 70 percent to 30 percent African-American. In the next election, the city council lost its sole African-American member.

Some proponents of general election reform assert that their approach is the best way to protect minority voters. Reducing long lines, for example, disproportionately helps minority voters because, as a study by MIT Professor Charles Stewart found, wait times for African Americans (23 minutes) and Latinos (19 minutes) are longer than those for whites (12 minutes). General election reform, however, does not stop politicians from manipulating election rules based on race. A federal mandate requiring shorter lines, for example, would not prevent Nueces County from redrawing local districts to diminish Latino voting strength. Rolling back a strict photo-identification requirement would not prevent Runnels County politicians from failing to provide bilingual poll workers. American democracy is unique because state and local politicians have great discretion with respect to election rules. Even with federal election reform, we would still need effective voting-rights protections to ensure that state and local politicians do not abuse that discretion.

At least 86 percent of all election changes blocked by Section 5 of the Voting Rights Act since 2000 could not have been prevented by federal election reform regulations. That’s because even when federal, state, and local elections are conducted simultaneously, many important changes would not be regulated by federal election reform, such as local redistricting, changes to local candidate qualifications, and reductions in the number of members on a county commission. The Fourteenth and Fifteenth Amendments, however, give Congress clear power over federal, state, and local elections to prevent voting discrimination. As a result, an updated Voting Rights Act can effectively prevent politicians from manipulating rules based on race—not only in federal elections, but also in state and local contests. Effective voting-rights protections for local elections—which often are nonpartisan—are particularly important. Unfair local changes often go unnoticed by national media and political groups, and voters often lack the significant sums needed to bring a lawsuit to challenge an unfair local change.

Many suggest that Congress is more likely to pass general election reform than a measure to prevent voting discrimination. At first glance, a bill focused on improving voting for all Americans would seem to be more popular than a bill that protects minorities. This conventional wisdom is off, however, because Democrats and Republicans disagree on general election reform. Many Republicans see early voting, Election Day registration, and less-restrictive voter identification as partisan proposals that help Democrats, invite fraud, and inappropriately infringe on state power. Any federal general election-reform bill could easily devolve into a partisan debate over photo identification. A general election reform bill would also likely involve the House Administration Committee, whose Republican chair, Candice Miller, said, “Washington intervention is not the answer” for election problems.

In contrast, both Republicans and Democrats generally agree that voting discrimination is wrong. Granted, the two parties disagree about whether particular restrictions are discriminatory. But bipartisan opposition to discrimination has provided the Voting Rights Act consistent support from both parties. Every reauthorization has been signed into law by a Republican president. In 2006, Congress came together and voted to renew the Voting Rights Act with an overwhelming bipartisan commitment (the vote in the U.S. Senate was 98-0).

In updating the Voting Rights Act in Congress, we should not be distracted by general election reform proposals. General election reform would fail to stop many types of discrimination and would face significant political obstacles. Instead, we should stay focused on preventing voting discrimination.

Comments

We actually do need both election reform and a new anti-discrimination law, but the newly passed voter ID laws are obviously both partisan and racially motivated. To start with, there is the Republican fantasy that "millions" of blacks and/or illegal immigrants are routinely "bussed by Democrats" to the polling place and provided with fraudulent ID in every election. Really, if there was THAT MUCH money in Democratic hands, they would become Republicans!

I somewhat agree that it may be easier to pass a new Voting Rights Act, however, in this Congress, if indeed ANYTHING can be passed, even a kidneystone, by these folks. But, just as they were ALREADY doing, the state Republicans have been passing laws that do not even MENTION race, but have obvious racist, and partisan, effects. Put fewer voting machines per 1000 voters in "some" precincts than "others," fewer poll workers, supply insufficent amounts of ballot forms, restrict hours, AND THEN punish voters at the end of the hour-plus-long lines by saying that even if someone is IN LINE BEFORE closing time, the polls will not stay open more than ONE EXTRA HOUR, even if people are turned away! It has long been a tradition, and a legal RIGHT, that whoever gets in line by closing time WILL get to vote, no matter how long it takes (usually, a police officer gets in line to mark the end). But when thousands, or maybe millions, of voters stood in line 12 hours past closing, the GOP decided in some states to close the doors an hour after closing, IN ORDER to stop hundreds of voters in each "wrong voting" precinct.

These people only understand two things: MONEY AND POWER. I would propose that any future voting rights law, in addition to fighting racial discrimination, should include a TEN THOUSAND DOLLAR civil penalty, plus federal court costs, going to EVERY individual voter with a LEGAL RIGHT to vote who can show proof that he or she (1) tried to register to vote, and was prevented from registering despite having a legal right, or (2) attempted to vote, and was turned away for ANY reason. The law should be clear enough that each such voter could sue individually without a lawyer (or with the help of a lawyer who takes the case on contingency).

Considering the large number of voters likely to be suppressed by these new state laws, and the number needed to retain power despite voter disgust, this would add a huge unbudgeted liability to those states (not only the penalties but the legal defense and court costs), and if they were tried even once, there would be a substantial windfall to the mostly poor and minority voters who are targeted for suppression, which would help THEIR economies (especially if the awards are designated NOT TAXABLE), and would boost the NATIONAL economy.

Why is this an either/or but not both approach? Problems of both sorts exist; solutions to address both sorts should be developed. While we are at it, we should have a National Election Day, which would guarantee time off to vote.